The famous Victorian cricketer WG Grace is reputed once to have offered the following advice:

“When you win the toss – bat. If you are in doubt, think about it, then bat. If you have very big doubts, consult a colleague – then bat.”

The recent Emerson decision [2012] EWCA Civ 1559 is another illustration that bringing a follow on claim in the CAT rather than in the High Court is the law’s equivalent of choosing to bowl.

Emerson was yet another interlocutory skirmish arising from the CAT’s notoriously troublesome follow on jurisdiction under section 47A of the Competition Act 1998. The European Commission had given a long and detailed decision, addressed to undertakings including “Carbone Lorraine SA”, finding that those undertakings had participated in an 11-year international cartel relating to carbon and graphite products. The Commission’s factual findings included express references to “a UK subsidiary” and to local meetings in the UK. The Claimant, which had suffered loss as a result of the cartel, brought a follow on claim in the CAT against Carbone Lorraine SA’s UK subsidiary, Le Carbone (Great Britain) Limited. Both the CAT and the Court of Appeal, however, dismissed that claim, on the basis that that subsidiary was not an “addressee” of the decision for the purposes of section 47A.

This outcome was no doubt strictly correct, both as a matter of statutory interpretation in relation to section 47A, and as a matter of EU law in relation to who amounts to the addressee of a Commission Decision. But it is yet another example of the illogicality of circumscribing the CAT’s statutory jurisdiction so narrowly, and in particular of limiting that jurisdiction to follow on claims. If Emerson had been able to bring a stand alone claim in the CAT as well, the issue would simply never have arisen: it could have proven its case by reference to the Commission Decision.

Instead however, the CAT, which is the UK’s specialist competition tribunal, expert in precisely the sort of economic issues which arise in determining liability in stand alone claims, is forbidden from determining such issues. The net result has been a long period of expensive appellate litigation as to whether the CAT has jurisdiction over a particular follow on claim, whether because of (i) the special limitation period (see e.g. BCL Old Co [2009] EWCA Civ 434, [2010] EWCA Civ 1258 and [2012] UKSC 45 and Deutsche Bahn [2012] EWCA Civ 1055), or (ii) issues as to the proper interpretation of the decision in question (see e.g. Enron [2009] EWCA Civ 647 and [2011] EWCA Civ 2, and Emerson itself).

This endless procedural litigation was regarded by the Court of Appeal in Emerson with apparent equanimity, Mummery LJ observing that “[g]iven the size of the sums involved, the novelty of the jurisdiction and the endless ingenuity of legal practitioners, there will be more appeals on other aspects of follow on proceedings” (para 7). Claimants may be forgiven for not adopting such a sanguine attitude, however. If the point of the CAT’s follow on jurisdiction is “…to satisfy the fundamental EU requirement of providing an effective remedy in national courts for people who have suffered loss and damage as a result of the infringements found by the Commission” (Mummery LJ at para 4), then at present it is conspicuously failing.

My client wishes to (bat rather than bowl) commence a section 47A follow-on claim in the High Court following an infringement decision of the European Commission, can this claim be issued despite appeals having been lodged in the European Courts against the Commission’s infringement decision? If brought in the CAT my client would have to apply to the CAT for permission to do so. What, however, is the case re procedure and bringing a claim in the High Court? Would my client protectively issue and request an immediate stay pending the outcome of the appeals?